Court Of Appeal Summaries (October 17 ' 21, 2022)

• Published date: 25 October 2022
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Litigation, Mediation & Arbitration, Real Estate and Construction, Criminal Law, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Family Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases, White Collar Crime, Anti-Corruption & Fraud, Civil Law, Wills/ Intestacy/ Estate Planning, Leasing
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good afternoon.

In Caja Paraguyaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Obregon, the Court clarified the issue of whether the civil standard for stay pending appeal, or the criminal standard for bail pending appeal, applies to a party being held in civil contempt. The Court held that the proper procedure is to apply the civil standard for stay pending appeal, but the factors in the RJR-MacDonald test can be influenced by the principles underlying applications for bail pending appeal as outlined in R. v. Oland.

In 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc., the Court was asked by a Landlord to determine whether a deposit held by the Landlord had been wrongfully ordered to be returned to the Tenant pursuant to the default provision of the Lease. The Court determined that, as the Tenant was in default under the Lease, the Landlord should not have been ordered to return the deposit. The Court also considered the Tenant's cross-appeal, where the Tenant sought relief from paying for roof repairs, amortized over the course of two years. The Court held that the repairs to the roof were properly a capital repair pursuant to the Lease, and therefore should be amortized over its useful life.

In Fair v. BMO Nesbitt Burns Inc., a claim by a disappointed beneficiary of certain investment accounts of her late husband, the Court upheld the motion judge's determination that a bank or financial adviser do not owe a duty to their customer to disclose the fact that their partner had changed the beneficiary designation on their registered investment accounts, even though the bank/financial adviser had both of them as clients and had shared information about both of them to the other in the past. To recognize such a duty would be contrary to the concurrent obligations of confidentiality that a bank/financial adviser has to its clients.

Other topics this week included the Court's review of a motion judge's decision to deny an extension of time for perfecting an appeal, an appeal that was dismissed as being vexatious (congratulations to our very own Sheldon Inkol on that one), a Will challenge and an appeal of a power of sale as being fraudulent and improvident.

Finally, the second edition of Civil Procedure and practice Ontario, 2022 ONCA 720(CPPO) is now live on CanLII's website. For those who may not know, CPPO offers to the public, the profession and the judiciary, a free online set of annotated Rules of Civil Procedure, as well as the Courts of Justice Act and the Limitations Act, 2002, complete with commentary and case law. The project was coordinated by Professor Noel Semple of Windsor Law School, and the chapters were written by a host of prominent and knowledgeable practitioners and judges. I had the privilege of co-authoring the chapters on references (Rules 54 and 55).
Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Sheth v. Randhawa, 2022 ONCA 707

Keywords: Contracts, Real Property, Mortgagee, Settlements, Enforcement, Power of Sale, Setting Aside, Improvident Sale

M.E. v. Ontario, 2022 ONCA 714

Keywords: Family Law, Crown Wardship, Civil Procedure, Vexatious Litigants, Rules of Civil Procedure, r. 2.1.01, M.E. et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 7325, M.E. v. R., 2020 ONCA 429, M.E. et al. v. HMTQ et al., 2021 ONSC 2862, Lochner v. Ontario Civil Police Commission, 2020 ONCA 720, Mukwa v. Farm Credit of Canada, 2022 ONCA 320

Fair v. BMO Nesbitt Burns Inc. , 2022 ONCA 711

Keywords: Wills and Estates, Constructive Trusts, Contracts, Financial Advisors, Duty to Disclose, Family Law Act, R.S.O. 1990, c. F.3, s. 13, Evidence Act, R.S.O. 1990, c. E.23, s. 13, Davidson v. Noram Capital Management Inc. (2005), 13 B.L.R. (4th) 35 (Ont. S.C.)., Moore v. Sweet, 2018 SCC 52, Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.), Hryniak v. Mauldin, 2014 SCC 7

Caja Paraguyaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Obregon, 2022 ONCA 724

Keywords: Civil Procedure, Civil Contempt, Stay Pending Appeal, Bail Pending Appeal, Courts of Justice Act, R.S.O 1990, c. 43, s. 106, Criminal Code, R.S.C. 1985, c. C-46, ss. 673, 679, Rules of Civil Procedure, r. 60.11, 63.02(1), Criminal Appeal Rules, r. 22, Directv, Inc. v. Boudreau (2005), 42 C.P.R. (4th) 388 (Ont. C.A.), T.(M.) v. A.(H.), [1995] 1 S.C.R. 445, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Chiang (Trustee of) v. Chiang, 2007 ONCA 529, R. v. Oland, 2017 SCC 17, Kopaniak v. MacLellan (2002), 159 O.A.C. 37 (C.A.), DM v. WS, 2019 ABCA 422, R. v. Hassan, 2017 ONCA 1008, R. v. Bissonnette, 2022 SCC 23, Master Linda S. Abrams et al., Halsbury's Laws of Canada, "Civil Procedure", (Toronto: LexisNexis Canada, 2021 Reissue)

402 Mulock Investments Inc. v. Wheelhouse Coatings Inc., 2022 ONCA 718

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Default, Security Deposits, Additional Rent, Capital Replacement, Amortization, Civil Procedure, Orders, Enforcement, Writs of Possession, Res Judicata, Issue Estoppel, Abuse of Process, Commercial Tenancies Act, R.S.O. 1990, c. L.7, ss. 80, 82, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020, S.O. 2020, c. 36, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Behn v. Moulton Contracting Ltd., 2013 SCC 26, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29

Correct Building Corporation v. Lehman, 2022 ONCA 723

Keywords: Civil Procedure, Appeals, Perfection, Extensions for Time, Courts of Justice Act, RSO 1990, c C43, s. 7(5), Municipal Act, 2001, SO 2001, c 25, s. 448, Rules of Civil Procedure, r. 61.16(6), Machado v. Ontario Hockey Association, 2019 ONCA 210, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Iqbal v. Mansoor, 2022 ONCA 198, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Sheth v. Randhawa, 2022 ONCA 89, Howard v. Martin, 2014 ONCA 309, Derakhshan v. Narula, 2018 ONCA 658, 40 Park Lane Circle v. Aiello, 2019 ONCA 451, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), Auciello v. Mahadeo, 2016 ONCA 414

Short Civil Decisions

Van Decker Estate v. Van Decker, 2022 ONCA 712

Keywords: Real Property, Landlord and Tenant, Occupation Rent, Wills and Estates, Civil Procedure, Adjournments, Corroborating Evidence, Evidence Act, R.S.O. 1990, c. E. 23, s. 13, Toronto Dominion Bank v. Kylton, 2010 ONCA 752, Khimji v. Dhanani (2004), 69 O.R. (3d) 790

Hategan v. Frederiksen, 2022 ONCA 715

Keywords: Civil Procedure, Security for Costs

Rebello v. Del Property Management , 2022 ONCA 720

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Security for Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2)

CIVIL DECISIONS

Sheth v. Randhawa, ONCA 707

[Doherty, Benotto and Copeland JJ.A.]

Counsel:

D. LaFramboise, for the appellant

M. R. Kestenberg and A. Hershtal, for the respondent, K.R

S. Chhina, for the respondents, 11035738 Canada Inc., S.M. and G.S.

D. Yiokaris and A. Shamim, for the respondents, TSD Law Professional Corporation and A.S.D

M. Harris, for the respondents, Bindaas Capital, A. K, S.P, and Dr. Mangesh Inamdar Medicine Professional Corporation

Keywords: Contracts, Real Property, Mortgagee, Settlements, Enforcement, Power of Sale, Setting Aside, Improvident Sale

facts:

The appellant had three mortgages on a property purchased in November 2017. The Respondents Bindaas Capital ("Bindaas") held the first and second mortgage. Park Lane held the third mortgage. The respondents A.K. and S.M were the principals of Bindaas.

By July 2018, the appellant defaulted on the first and second mortgages and Bindaas issued a Notice of Sale with demand for payment. No payment was made. The third mortgagee was served with the Notice of Sale under the first mortgage. The first mortgage was then transferred to Bindaas and B.N. ("Bindaas Group") in July 2019. This led to lawsuits by the appellant against Bindaas and the Bindaas Group relating to the appellant's defaults.

On December 4, 2019, the parties entered into a settlement agreement to resolve the two enforcement actions. The appellant did not pay on time and the Bindaas Group proceeded with an ex parte motion for enforcement. On February 13, 2020, the motion for enforcement of the settlement was heard and the motion judge ordered the appellant to pay the Bindaas Group.

Meanwhile, both the appellant and the respondents were trying to sell the property. Neither kept the other informed. The Bindaas group accepted an offer of $970,000 from 11035738 Canada Inc. ("1103 Corp.") on an "as is" basis. The appellant accepted an offer from B.A. for $1,000,000, which included a collateral agreement allowing her to remain on the property.

On March 9, 2020, the deal between Bindaas and 1103 Corp. closed, and the property was transferred to 1103 Corp. The sale occurred by Power of Sale under the first mortgage. The second mortgage was discharged. The third and fourth mortgages were extinguished by the Power of Sale.

The appellant was not immediately advised the property was sold. On March 16, 2020, the appellant brought an emergency motion and obtained an order setting the amount required to discharge the two mortgages at $929,498. The appellant did not attempt to register the March 16, 2020 order discharging the mortgages until May 7, 2020. The appellant continued to occupy the property and paid no rent to 1103 Corp.

On May 12, 2020, 1103 Corp. issued a notice requiring the appellant to vacate on or before May 17, 2020. On May 13, 2020, the appellant issued a statement of claim suing all the...